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Functioning of justice systems

Functioning of justice
systems

Reporting by ENNHRI members reveals that challenges continue to affect the functioning of justice systems across the region.

Despite attempts in a number of countries to improve the functioning of justice systems and some progress in terms of digitalisation of justice triggered by the situation created following the COVID-19 pandemic, several ENNHRI members generally point to the need for further legislative reform to strengthen the judiciary, as reflected in particular in reports on Albania, Azerbaijan, Bosnia and Herzegovina, Georgia, Greece, Moldova , Slovakia and Ukraine. ENNHRI members from Albania, Bosnia and Herzegovina, Kosovo, Moldova and Slovakia also alert that a low level of public trust in the justice system, including due to perceptions of lack of impartiality, persists despite reform efforts. By contrast, ENNHRI member in France reported about a bill to foster public trust in the judicial system.

Concerns over the independence of courts and judges remain common to a number of countries across the region. The situation continues being particularly worrying in Poland, where the NHRI denounces a continued deterioration and the lack of implementation to date of judgments on the matter of the ECtHR and the CJEU. In Hungary, ENNHRI member notes some progress as regards the equation of salaries of judges and prosecutors, but still points to gaps in the procedure for applying and filling judicial posts, in particular as regards the availability of effective remedies – an issue on which the Constitutional Court recently intervened to annul provisions of the existing law which excluded the possibility to complain about procedural irregularities affecting the outcome of selection procedures.

Flaws in the system of judicial appointments and composition of courts, which impact on the independence and impartiality of judges, are also mentioned by ENNHRI members in Albania, Finland, Georgia, Greece and Ireland. In Ireland, as well as in Norther Ireland, concerns are also raised in relation to special courts: namely, the Irish NHRI continues to question the independence and composition of the special criminal court for crimes against the State; while ENNHRI member in Northern Ireland alerts about the ‘non-jury trials’ becoming permanent rather than exceptional, in particular for cases concerning political and religious hostility and membership in proscribed organisations.

Concerns over the disciplinary regime of judges are equally common to a number of countries across the region. The NHRI from Albania is particularly concerned about vetting procedures being initiated against judges and prosecutors, often leading to their dismissal, and their impact on the impartiality and independence of the judiciary from the executive branch. The NHRI in Georgia strongly opposed to the legislative changes adopted concerning disciplinary proceedings against judges. ENNHRI’s member in Croatia signalled a spike of disciplinary proceedings initiated against judges in 2021, as well as an increasing number of complaints against judges submitted by citizens to the institution. The NHRI in Romania signals ongoing efforts to eliminate the Section for the Investigation of Offences in the Judiciary and replace it with a new body within the Public Prosecution Office; while this is seen as a potentially positive development, ENNHRI’s member informs about concerns expressed by judges’ associations over the bill’s proposed solution.

ENNHRI members’ reporting in a number of countries also points to gaps in the independence and operations of national councils of the judiciary. This is presented as a major issue in Georgia, where the NHRI regrets that the vast majority of decisions concerning the selection and promotion of judges delivered by the council of the judiciary are not impartial nor based on merit, but piloted by an influential group of judges. In Hungary, a case on the matter is pending before the Constitutional Court, while in Slovakia ENNHRI’s member signals gaps in the dismissal system of council members, and in Spain the NHRI informs that the council has still not been renewed due to a political impasse.

In terms of the efficiency of the justice system, ENNHRI members in Albania, Finland, Germany, Luxembourg, Norway, Spain and Ukraine alert about the need for securing more resources. In Albania and Ukraine, ENNHRI members especially regrets the high number of vacant judicial posts and warns that understaffing is hindering the functioning of several courts. The excessive length of proceedings is still mentioned as an issue by ENNHRI members in several countries across the region, also exacerbated by the restrictions imposed to respond the public health emergency. This is presented by ENNHRI members as a rather general problem in Albania, Azerbaijan, Bosnia and Herzegovina, Croatia, Cyprus, Denmark, Finland, France, Estonia, Greece, Kosovo, Moldova, North Macedonia, Portugal, Serbia and Spain.

In certain countries, delays are particularly reported in relation to certain types of proceedings, such as proceedings on childcare and family matters in the Czech Republic, and criminal proceedings in Moldova. Against this background, ENNHRI members in a number of countries, namely Albania, Denmark, Greece, Great Britain, Northern Ireland and Spain, account of efforts by State authorities to improve the efficiency of proceedings. These also concretised, for example in Greece and Great Britain, in digitalisation efforts – although ENNHRI members, in particular in Great Britain, alert how introduced digital tools in particular in criminal proceedings may impact the enjoyment of the right to an effective remedy, in particular by vulnerable groups such as children and persons with disabilities.

At the same time, ENNHRI members in some countries also flag challenges affecting the effective judicial review framework. These particularly affect the effective review of administrative decisions, such as decisions on social assistance benefits in the Czech Republic, and decision on misdemeanours in Estonia. Some ENNHRI’s members point to wider problems, such as systematic delays in administrative justice in Albania, a lack of “culture” of prompting judicial review in Luxembourg, or the lack of substantively motivated court decisions in North Macedonia. By contrast, ENNHRI’s member in Slovakia welcomes the creation of a new Supreme Administrative Court as a positive step to ensure better judicial review of administrative decisions. ENNHRI’s members in Azerbaijan, Croatia, Kosovo, Moldova and Ukraine further points to gaps in the enforcement of court decisions. ENNHRI members in Belgium, Bosnia and Herzegovina, Bulgaria, Finland, Great Britain, Greece, Kosovo, Northern Ireland, Poland and Slovakia deplore the non-execution of rulings by the ECtHR, while ENNHRI’s members from Great Britain and Northern Ireland alarm about how the ongoing Human Rights Act reform in the United Kingdom is likely to significantly weaken the judicial review exercised by the ECtHR.

ENNHRI members’ reporting also continue to expose issues affecting access to justice and fairness of proceedings. In Albania, the NHRI alarms about an ongoing reform on the judicial map that would lead to a significant decrease of the number of courts and an increase in costs, and thus risks having a negative impact on access to justice by general public.

A problem common to various countries across the region relates to the accessibility and effectiveness of the legal aid system, on which ENNHRI members signal lack of progress in Albania, Bosnia and Herzegovina, Croatia, Great Britain, Greece, Ireland, Lithuania, Luxembourg, Moldova, Norway and Slovenia. In particular, major gaps are reported in Albania, Bosnia and Herzegovina and Moldova, including in terms of the quality of the legal assistance provided. Elsewhere, such as in Ireland and Lithuania, limited legal aid and a lack of information thereto is still said to constitute a barrier for access to justice especially for vulnerable groups, including persons with low income, women, victims of domestic violence, victims of trafficking and labour exploitation, migrants and applicants for international protection and ethnic minorities such as Roma and Travellers.

In some countries, such as Greece, the inefficiency of the legal aid system is also coupled with rising costs of court proceedings in civil cases while. In this respect, only the NHRI in Finland mentions some positive developments, including a planned reform of the legal aid system and a new procedure proposed by the Bar Association which would reduce the cost and time of proceedings in small civil claims.

More generally, ENNHRI members in several countries continue to question the adequacy of current legal and procedural frameworks in terms of ensuring effective access to justice and fairness of proceedings. This is reported as a general problem in Azerbaijan, where the NHRI alerts about numerous violations of the right to participate in proceedings, the right to a hearing and respect for the principle of equality of arms, as exposed by complaints submitted to the institution. In other countries, gaps are identified in particular in specific areas, such as antidiscrimination (as reported in the Czech Republic and Liechtenstein), family law proceedings and proceedings involving children (as reported in Bulgaria, Germany, Ireland, Luxembourg and Slovenia), as well as asylum and migration (as reported in Belgium, the Czech Republic, Greece and Latvia – with ENNHRI member in Finland signalling on this point ongoing efforts to map challenges and improve access to justice for asylum seekers).

Furthermore, ENNHRI members in Finland, Germany, Great Britain, Ireland, Lithuania, Luxembourg and Serbia deplore the lack of accommodation of needs of persons with disabilities in judicial proceedings, while ENNHRI members in Albania and Belgium mention challenges in accessing courts for people in a situation of poverty, and ENNHRI members in Belgium points to the problematic practice of denying access to courts to people wearing religious symbols, which remains unaddressed despite a ruling by the ECtHR on the matter. Furthermore, ENNHRI member in Romania calls for the improvement of awareness of procedural rights, while ENNHRI members in Bulgaria, Liechtenstein and Luxembourg underline the need for an establishment or a reform of children’s protection and juvenile justice systems. By contrast, in France, ENNHRI member signals a number of improvements, including a reform of the juvenile justice system and a new law to improve detention conditions, adopted as a follow-up to a ruling by the ECtHR.

A number of non-EU ENNHRI’s members specifically point to worrying trends concerning the respect of fair trial and procedural rights in criminal proceedings. The NHRI from Moldova is particularly concerned over length of proceedings in criminal cases, while ENNHRI members from Liechtenstein and Ukraine identified violations of the rights of suspects in pre-trial detention. In Great Britain, the NHRI advocates for fairness and accommodation of needs of children and persons with disabilities during criminal proceedings. Some ENNHRI members also stress the existence of gaps in ensuring the respect of the rights of victims of crime – with particular reference to access to justice for victims of hate crime and domestic violence in Germany, the right to compensation for victims of trafficking in Luxemburg, the dysfunctionalprosecution service in North Macedonia, attempts to grant a blanket impunity to crimes related to ‘The Troubles’ conflict in Northern Ireland, and failure to deliver justice to non-national victims of crime in Slovenia. By contrast, a new law on the rights of victims of crime was adopted in Slovakia.

Various ENNHRI members further raise the issue of transparency and the lack of publication of court decisions, as reflected in country reports on Azerbaijan, Bosnia and Herzegovina, Czech Republic, Estonia and Ukraine. The lack of transparency of judicial institutions is mentioned as a general problem in Bosnia and Herzegovina, as well as in Albania with specific reference to proceedings before the High Court, in relation to which the NHRI regrets the fact that in public hearings are held only as an exception. ENNHRI members in Azerbaijan, Moldova, Northern Ireland, North Macedonia and Ukraine complain about insufficient access to information concerning court proceedings, including difficulties in obtaining court documents.

Role of the NHRI in contributing to the effective functioning of the justice system

Reporting by ENNHRI members illustrates the role of NHRIs in contributing to the effective functioning of the justice system, including through advocacy and recommendations to relevant authorities on improvement of justice systems (Albania, Azerbaijan, Bosnia and Herzegovina, Georgia, Great Britain, Liechtenstein, Montenegro, North Macedonia, Northern Ireland, Norway, the Russian Federation and Ukraine), complaints handling and advice to individuals (such as for example in Albania, Azerbaijan, Croatia and North Macedonia), targeted reporting (as per examples in France, Luxembourg and Slovenia), fostering discussions on reforms and steps to take to ensure respect of constitutional and international standards (as illustrated in Albania, Bulgaria, Croatia, Great Britain, Latvia, Northern Ireland, Poland, Romania, Slovakia and Slovenia), and promoting access to justice for vulnerable groups (as reflected for example in the NHRI’s involvement in public funded projects on violence against women, victims of trafficking and victims of racist violence in Germany and the NHRI’s advocacy for access to justice for persons with disabilities in Great Britain).

Key recommendations

1. Strengthening the independence and impartiality of courts, including by means of ensuring transparent and fair systems for judicial appointments and the allocation of cases and by strengthening the independence of national judicial councils;

2. Improving the efficiency of justice systems, through adequate human and financial resources as well as measures to tackle systemic delays in court proceedings in full respect of the right to have access to a court and to a fair trial;

3. Facilitating access to justice and ensuring compliance with fair trial standards for vulnerable groups such as children and juveniles, migrants and asylum seekers, victims of trafficking, victims of discrimination and racist violence, and persons with disabilities, also by accommodating as appropriate their specific needs during proceedings

4. Improving courts’ accessibility, including by ensuring a rational but fair distribution of courts, reducing the costs of proceedings, and improving legal aid systems;

5. Encouraging closer and better cooperation of judicial authorities with NHRIs, also with a view to a more systematic implementation of their recommendations.